AN INTRODUCTION TO THE

INTERNATIONAL

CRIMINAL COURT

WILLIAM A. SCHABAS

The Pitt Building, Trumpington Street, Cambridge, United Kingdom

The Edinburgh Building, Cambridge CB2 2RU, UK40 West 20th Street, New York, NY 10011-4211, USA

477 Williamstown Road, Port Melbourne, VIC 3207, AustraliaRuiz de Alarcón 13, 28014 Madrid, Spain

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© William A. Schabas 2001

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A catalogue record for this book is available from the British Library

Library of Congress Cataloguing in Publication data

Schabas, William, 1950–An introduction to the International Criminal Court / by William A. Schabas.

p. cm.Includes bibliographical references and index.

ISBN 0 521 80457 4 (hardback) ISBN 0 521 01149 3 (paperback)1. International Criminal Court. 2. International criminal courts.

3. International offenses. I. Title.KZ6310.S33 2001

341.7�7–dc21 01-069751

ISBN 0 521 80457 4 hardbackISBN 0 521 01149 3 paperback

CONTENTS

Preface vii

List of abbreviations x

1 Creation of the Court 1

2 Crimes prosecuted by the Court 21

3 Jurisdiction and admissibility 54

4 General principles of criminal law 71

5 Investigation and pre-trial procedure 94

6 Trial and appeal 118

7 Punishment and the rights of victims 137

8 Structure and administration of the Court 151

Appendices 165

Rome Statute of the International Criminal Court 167

Elements of Crimes 248

Rules of Procedure and Evidence 293

Bibliography 383

Index 396

v

1

Creation of the Court

War criminals have been prosecuted at least since the time of the ancient

Greeks, and probably well before that. The idea that there is some

common denominator of behaviour, even in the most extreme circum-

stances of brutal armed conflict, confirms beliefs drawn from philosophy

and religion about some of the fundamental values of the human spirit.

The early laws and customs of war can be found in the writings of classical

authors and historians. Those who breached themwere subject to trial and

punishment. Modern codifications of this law, such as the detailed text

prepared by Columbia University professor Francis Lieber that was

applied by Abraham Lincoln to the Union army during the American Civil

War, proscribed inhumane conduct and set out sanctions, including the

death penalty, for pillage, raping civilians, abuse of prisoners and similar

atrocities.1 Prosecution for war crimes, however, was only effected by

national courts, and these were and remain ineffective when those respon-

sible for the crimes are still in power and their victims remain subjugated.

Historically, the prosecution of war crimes was generally restrained to the

vanquished or to isolated cases of rogue combatants in the victor’s army.

National justice systems have often proven themselves to be incapable of

being balanced and impartial in such cases.

The first genuinely international trial for the perpetration of atrocities

was probably that of Peter von Hagenbach, who was tried in 1474 for

atrocities committed during the occupation of Breisach. When the town

was retaken, von Hagenbach was charged with war crimes, convicted and

beheaded.2 But what was surely no more than a curious experiment in

medieval international justice was soon overtaken by the sanctity of State

sovereignty resulting from the Peace of Westphalia of 1648. With the

11 Instructions for the Government of Armies of the United States in the Field, General OrdersNo. 100, 24 April 1863.

12 M. Cherif Bassiouni, ‘From Versailles to Rwanda in 75 Years: The Need to Establish aPermanent International Court’, (1997) 10Harvard Human Rights Journal 11.

development of the law of armed conflict in the mid-nineteenth century,

concepts of international prosecution for humanitarian abuses slowly

began to emerge. One of the founders of the Red Cross movement, which

grew up in Geneva in the 1860s, urged a draft statute for an international

criminal court. Its task would be to prosecute breaches of the Geneva

Convention of 1864 and other humanitarian norms. But Gustav

Monnier’s innovative proposal was much too radical for its time.3

The Hague Conventions of 1899 and 1907 represent the first significant

codification of the laws of war in an international treaty. They include an

important series of provisions dealing with the protection of civilian pop-

ulations. Article 46 of the Regulations that are annexed to the Hague

Convention IV of 1907 enshrines the respect of ‘[f]amily honour and

rights, the lives of persons, and private property, as well as religious con-

victions and practice’.4 Other provisions of the Regulations protect cultu-

ral objects and private property of civilians. The preamble to the

Conventions recognizes that they are incomplete, but promises that until a

more complete code of the laws of war is issued, ‘the inhabitants and the

belligerents remain under the protection and the rule of the principles of

the law of nations, as they result from the usages established among civil-

ized peoples, from the laws of humanity, and the dictates of the public

conscience’. This provision is known as the Martens clause, after the

Russian diplomat who drafted it.5

The Hague Conventions, as international treaties, were meant to

impose obligations and duties upon States, and were not intended to

create criminal liability for individuals. They declared certain acts to be

illegal, but not criminal, as can be seen from the absence of anything sug-

gesting a sanction for their violation. Yet within only a few years, the

Hague Conventions were being presented as a source of the law of war

crimes. In 1913, a commission of inquiry sent by the Carnegie Foundation

to investigate atrocities committed during the BalkanWars used the provi-

sions of the Hague Convention IV as a basis for its description of war

13 Christopher Keith Hall, ‘The First Proposal for a Permanent International Criminal Court’,(1998) 322 International Review of the Red Cross 57.

14 Convention Concerning the Laws and Customs of War on Land (Hague IV), 3 MartensNouveau Recueil (3d) 461. For the 1899 treaty, see Convention (II) with Respect to the Lawsand Customs of War on Land, 32 Stat. 1803, 1 Bevans 247, 91 British Foreign and State Treaties988.

15 Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of PublicConscience’, (2000) 94 American Journal of International Law 78.

crimes.6 Immediately following World War I, the Commission on

Responsibilities of the Authors of War and on Enforcement of Penalties,

established to examine allegations of war crimes committed by the Central

Powers, did the same.7 But actual prosecution for violations of the Hague

Conventions would have to wait until Nuremberg. Offences against the

laws and customs of war, known as ‘Hague Law’ because of their roots in

the 1899 and 1907 Conventions, are codified in the 1993 Statute of the

International Criminal Tribunal for the Former Yugoslavia8 and in Article

8(2)(b), (e) and (f) of the Statute of the International Criminal Court.

AsWorldWar I wound to a close, public pressuremounted, particularly

in England, for criminal prosecution of those generally considered to be

responsible for the war. There was much pressure to go beyond violations

of the laws and customs of war and to prosecute, in addition, the waging of

war itself in violation of international treaties. At the Paris Peace

Conference, the Allies debated the wisdom of such trials as well as their

legal basis. The United States was generally hostile to the idea, arguing that

this would be ex post facto justice. Responsibility for breach of interna-

tional conventions, and above all for crimes against the ‘laws of humanity’

– a reference to civilian atrocities within a State’s own borders – was a

question of morality, not law, said the American delegation. But this was a

minority position. The resulting compromise dropped the concept of

‘laws of humanity’ but promised prosecution of Kaiser Wilhelm II ‘for a

supreme offence against international morality and the sanctity of

treaties’. The Versailles Treaty formally arraigned the defeated German

emperor and pledged the creation of a ‘special tribunal’ for his trial.9

Wilhelm of Hohenzollern had fled to neutral Holland which refused his

extradition, the Dutch government considering that the charges consisted

of retroactive criminal law. He lived out his life there and died, ironically,

in 1941 when his country of refuge was falling under German occupation

in the early years of World War II.

The Versailles Treaty also recognized the right of the Allies to set up

16 Report of the International Commission to Inquire into the Causes and Conduct of the BalkanWars, Washington: Carnegie Endowment for International Peace, 1914.

17 Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports ofAmerican and JapaneseMembers of the Commission of Responsibilities, Conference of Paris, 1919,Oxford: Clarendon Press, 1919.

18 Statute of the International Criminal Tribunal for the Former Yugoslavia, UNDoc. S/RES/827,Annex.

19 Treaty of Peace between the Allied and Associated Powers and Germany (‘Treaty of Versailles’),(1919) TS 4, Art. 227.

military tribunals to try German soldiers accused of war crimes.10

Germany never accepted the provisions, and subsequently a compromise

was reached whereby the Allies would prepare lists of German suspects,

but the trials would be held before the German courts. An initial list of

nearly 900 was quickly whittled down to about forty, and in the end only a

dozen were actually tried. Several were acquitted; those found guilty were

sentenced to modest terms of imprisonment, often nothing more than

time already served in custody prior to conviction. The trials looked rather

more like disciplinary proceedings of the German army than any interna-

tional reckoning. Known as the ‘Leipzig Trials’, the perceived failure of this

early attempt at international justice haunted efforts in the inter-war years

to develop a permanent international tribunal and were grist to the mill of

those who opposed war crimes trials for the Nazi leaders. But two of the

judgments of the Leipzig court involving the sinking of the hospital ships

Dover Castle and Llandovery Castle, and the murder of the survivors,

mainly Canadian wounded and medical personnel, are cited to this day as

precedents on the scope of the defence of superior orders.11

The Treaty of Sèvres of 1920, which governed the peace with Turkey,

also provided for war crimes trials.12 The proposed prosecutions against

the Turks were evenmore radical, going beyond the trial of suspects whose

victims were either Allied soldiers or civilians in occupied territories to

include subjects of the Ottoman Empire. This was the embryo of what

would later be called crimes against humanity. However, the Treaty of

Sèvres was never ratified by Turkey, and the trials were never held. The

Treaty of Sèvres was replaced by the Treaty of Lausanne of 1923 which

contained a ‘Declaration of Amnesty’ for all offences committed between

1 August 1914 and 20 November 1922.13

Although these initial efforts to create an international criminal court

were unsuccessful, they stimulated many international lawyers to devote

their attention to the matter during the years that followed. Baron

Descamps of Belgium, a member of the Advisory Committee of Jurists

appointed by the Council of the League of Nations, urged the establish-

10 Ibid., Arts 228–230.11 German War Trials, Report of Proceedings Before the Supreme Court in Leipzig, London: HisMajesty’s Stationery Office, 1921. See also James F. Willis, Prologue to Nuremberg: The Politicsand Diplomacy of Punishing War Criminals of the First World War, Westport, CT: GreenwoodPress, 1982.

12 (1920) UKTS 11; (1929) 99 (3rd Series), DeMartens, Recueil général des traités, No. 12, p. 720(French version).

13 Treaty of Lausanne Between Principal Allied and Associated Powers and Turkey, (1923) 28LNTS 11.

ment of a ‘high court of international justice’. Using language borrowed

from the Martens clause in the preamble to the Hague Conventions,

Descamps recommended that the jurisdiction of the court include

offences ‘recognized by the civilized nations but also by the demands of

public conscience [and] the dictates of the legal conscience of civilized

nations’. The Third Committee of the Assembly of the League declared

that Descamps’ ideas were ‘premature’. Efforts by expert bodies, such as

the International Law Association and the International Association of

Penal Law, culminated, in 1937, in the adoption of a treaty by the League

of Nations that contemplated the establishment of an international crimi-

nal court.14 But, failing a sufficient number of ratifying States, that treaty

never came into force.

The Nuremberg and Tokyo trials

In the Moscow Declaration of 1 November 1943, the Allies affirmed their

determination to prosecute the Nazis for war crimes. The United Nations

Commission for the Investigation of War Crimes, composed of represen-

tatives of most of the Allies, and chaired by Sir Cecil Hurst of the United

Kingdom, was established to set the stage for post-war prosecution. The

Commission prepared a ‘Draft Convention for the Establishment of a

United Nations War Crimes Court’, basing its text largely on the 1937

treaty of the League of Nations.15 But it was the work of the London

Conference, convened at the close of the war and limited to the four major

powers, the United Kingdom, France, the United States and the Soviet

Union, that laid the groundwork for the prosecutions at Nuremberg. The

Agreement for the Prosecution and Punishment of Major War Criminals

of the European Axis, and Establishing the Charter of the International

Military Tribunal (IMT) was formally adopted on 8 August 1945, and was

promptly signed by representatives of the four powers. The Charter of the

International Military Tribunal was annexed to the Agreement.16 This

14 Convention for the Creation of an International Criminal Court, League of Nations OJ Spec.Supp. No. 156 (1936), LN Doc. C.547(I).M.384(I).1937.V (1938).

15 ‘Draft Convention for the Establishment of a United Nations War Crimes Court’, UN WarCrimes Commission, Doc. C.50(1), 30 September 1944.

16 Agreement for the Prosecution and Punishment of MajorWar Criminals of the European Axis,and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82UNTS 279. See Arieh J. Kochavi, Prelude to Nuremberg, Allied War Crimes Policy and theQuestion of Punishment, Chapel Hill and London: University of North Carolina Press, 1998;Report of Robert H. Jackson, United States Representative to the International Conference onMilitary Trials,Washington: US Government Printing Office, 1949.

treaty was eventually adhered to by nineteen other States who, although

they played no active role in the Tribunal’s activities or the negotiation of

its statute, sought to express their support for the concept.

In October 1945, indictments were served on twenty-four Nazi leaders,

and their trial – known as the Trial of theMajorWar Criminals – began the

following month. It concluded nearly a year later, with the conviction of

nineteen defendants and the imposition of sentence of death in twelve

cases. The Tribunal’s jurisdiction was confined to three categories of

offence: crimes against peace, war crimes and crimes against humanity.

The Charter of the International Military Tribunal had been adopted after

the crimes had been committed, and for this reason it was attacked as con-

stituting ex post facto criminalization. Rejecting such arguments, the

Tribunal referred to the Hague Conventions, for the war crimes, and to the

1928 Kellogg–Briand Pact, for crimes against peace.17 It also answered that

the prohibition of retroactive crimes was a principle of justice, and that it

would fly in the face of justice to leave the Nazi crimes unpunished. This

argument was particularly important with respect to the category of

crimes against humanity, for which there was little real precedent. In the

case of some war crimes charges, the Tribunal refused to convict after

hearing evidence of similar behaviour by British and American soldiers.18

In December 1945, the four Allied powers enacted a somewhat mod-

ified version of the Charter of the International Military Tribunal, known

as Control Council Law No. 10.19 It provided the legal basis for a series of

trials before military tribunals that were run by the victorious Allies, as

well as for subsequent prosecutions by German courts that continued for

several decades. Control Council Law No. 10, which was really a form of

domestic legislation because it applied to prosecution of Germans by

courts of the civil authorities, largely borrowed the definition of crimes

17 The Kellogg–Briand Pact was an international treaty that renounced the use of war as a meansto settle international disputes. Previously, war as such was not prohibited by international law.States had erected a network of bilateral and multilateral treaties of non-aggression and alli-ance in order to protect themselves from attack and invasion.

18 France et al. v.Goering et al., (1946) 22 IMT 203; (1946) 13 ILR 203; (1946) 41American Journalof International Law 172. The judgment itself, as well as the transcript of the hearings and thedocumentary evidence, are reproduced in a forty-volume series published in English andFrench and available inmost major reference libraries. The literature on the Nuremberg trial ofthe major war criminals is extensive. Probably the best modern account is Telford Taylor, TheAnatomy of the Nuremberg Trials, New York: Alfred A. Knopf, 1992.

19 Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes AgainstPeace and Against Humanity, 20 December 1945, Official Gazette of the Control Council forGermany, No. 3, 31 January 1946, pp. 50–5.

against humanity found in the Charter of the Nuremberg Tribunal, but

omitted the latter’s insistence on a link between crimes against humanity

and the existence of a state of war, thereby facilitating prosecution for pre-

1939 crimes committed against German civilians, including persecution

of the Jews and euthanasia of the disabled. Several important trials were

held pursuant to Control Council Law No. 10 in the period 1946–1948 by

Americanmilitary tribunals. These focused on groups of defendants, such

as judges, doctors, bureaucrats and military leaders.20

In the Pacific theatre, the victorious Allies established the International

Military Tribunal for the Far East. Japanese war criminals were tried under

similar provisions to those used at Nuremberg. The bench was more cos-

mopolitan, consisting of judges from eleven countries, including India,

China and the Philippines, whereas the Nuremberg judges were appointed

by the four major powers, the United States, the United Kingdom, France

and the Soviet Union.

At Nuremberg, Nazi war criminals were charged with what the prosecu-

tor called ‘genocide’, but the term did not appear in the substantive provi-

sions of the Statute and the Tribunal convicted them of ‘crimes against

humanity’ for the atrocities committed against the Jewish people of

Europe. Within weeks of the judgment, efforts began in the General

Assembly of the United Nations to push the law further in this area. In

December 1946, a resolution was adopted declaring genocide a crime

against international law and calling for the preparation of a convention

on the subject.21 Two years later, the General Assembly adopted the

Convention for the Prevention and Punishment of the Crime of

Genocide.22 The definition of genocide set out in Article II of the 1948

Convention is incorporated unchanged in the Statute of the International

Criminal Court, as Article 6. But, besides defining the crime and setting

out a variety of obligations relating to its prosecution, Article VI of the

Convention said that trial for genocide was to take place before ‘a compe-

tent tribunal of the State in the territory of which the act was committed,

20 Frank M. Buscher, The US War Crimes Trial Program in Germany, 1946–1955, Westport, CT:Greenwood Press, 1989. The judgments in the cases, as well as much secondary material anddocumentary evidence, have been published in two series, one by the United StatesGovernment titled Trials of theWar Criminals (15 volumes), the other by the United KingdomGovernment titled Law Reports of the Trials of the War Criminals (15 volumes). Both series arereadily available in reference libraries. 21 GA Res. 96(I).

22 Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS277.

or by such international penal tribunal as may have jurisdiction with

respect to those Contracting Parties which shall have accepted its jurisdic-

tion’. An early draft of the Genocide Convention prepared by the United

Nations Secretariat had actually included a model statute for a court,

based on the 1937 treaty developed within the League of Nations, but the

proposal was too ambitious for the time and the conservative drafters

stopped short of establishing such an institution.23 Instead, a General

Assembly resolution adopted the same day as the Convention called upon

the International Law Commission to prepare the statute of the court

promised by Article VI.24

International Law Commission

The International Law Commission is a body of experts named by the

United Nations General Assembly and charged with the codification and

progressive development of international law. Besides the mandate to

draft the statute of an international criminal court derived from Article VI

of the Genocide Convention, in the post-war euphoria about war crimes

prosecution the General Assembly had also asked the Commission to

prepare what are known as the ‘Nuremberg Principles’, a task it completed

in 1950, and the ‘Code of Crimes Against the Peace and Security of

Mankind’, a job that took considerably longer. Indeed, much of the work

on the draft statute of an international criminal court and the draft code of

crimes went on within the Commission in parallel, almost as if the two

tasks were hardly related. The pair of instruments can be understood by

analogy with domestic law. They correspond in a general sense to the defi-

nitions of crimes and general principles found in criminal or penal codes

(the ‘code of crimes’), and the institutional and procedural framework

found in codes of criminal procedure (the ‘statute’).

Meanwhile, in parallel with the work of the International Law

Commission, the General Assembly also established a committee charged

with drafting the statute of an international criminal court. Composed of

seventeen States, it submitted its report and draft statute in 1952.25 A new

23 William A. Schabas, Genocide in International Law, The Crime of Crimes, Cambridge:Cambridge University Press, 2000.

24 ‘Study by the International Law Commission of the Question of an International CriminalJurisdiction’, GA Res. 216B(III).

25 ‘Report of the Committee on International Criminal Court Jurisdiction’, UN Doc. A/2135(1952).

committee, created by the General Assembly to review the draft statute in

the light of comments by Member States, reported to the General

Assembly in 1954.26 The International Law Commission made consider-

able progress on its draft code and actually submitted a proposal in 1954.27

Then, the General Assembly suspended the mandates, ostensibly pending

the sensitive task of defining the crime of aggression.28 In fact, political

tensions associated with the Cold War had made progress on the war

crimes agenda virtually impossible.

The General Assembly eventually adopted a definition of aggression, in

1974,29 but the work did not immediately resume on the proposed inter-

national criminal court. In 1981, the General Assembly asked the

International Law Commission to revive the work on its draft code of

crimes.30 Doudou Thiam was designated the special rapporteur of the

Commission, and he produced annual reports on various aspects of the

draft code for more than a decade. Thiam’s work, and the associated

debates in the Commission, addressed a range of questions, including

definitions of crimes, criminal participation, defences and penalties.31 A

substantially revised version of the 1954 draft code was provisionally

adopted by the Commission in 1991, and then sent to Member States for

their reaction.

But the code did not necessarily involve an international jurisdiction.

That aspect of the work was only initiated in 1989, the year of the fall of the

BerlinWall. Trinidad and Tobago, one of several Caribbean States plagued

by narcotics problems and related transnational crime issues, initiated a

resolution in the General Assembly directing the International Law

Commission to consider the subject of an international criminal court

within the context of its work on the draft code of crimes.32 Special

Rapporteur Doudou Thiammade an initial presentation on the subject in

1992. By 1993, the Commission had prepared a draft statute, this time

under the direction of Special Rapporteur James Crawford. The draft

statute was examined that year by the General Assembly, which encour-

aged the Commission to complete its work. The following year, in 1994,

26 ‘Report of the Committee on International Criminal Court Jurisdiction’, UN Doc. A/2645(1954).

27 Yearbook . . . 1954, Vol. I, 267th meeting, para. 39, p. 131 (ten in favour, with one abstention).On the 1954 draft code in general, see D.H.N. Johnson, ‘Draft Code of Offences Against thePeace and Security of Mankind’, (1955) 4 International and Comparative Law Quarterly 445.

28 GA Res. 897(IX) (1954). 29 GA Res. 3314(XXIX) (1974). 30 GA Res. 36/106 (1981).31 These materials appear in the annual reports of the International Law Commission.32 GA Res. 44/89.

the Commission submitted the final version of its draft statute for an

international criminal court to the General Assembly.33

The International Law Commission’s draft statute of 1994 focused on

procedural and organizational matters, leaving the question of defining

the crimes and the associated legal principles to the code of crimes, which

it had yet to complete. Two years later, at its 1996 session, the Commission

adopted the final draft of its ‘Code of Crimes Against the Peace and

Security of Mankind’.34 The draft statute of 1994 and the draft code of

1996 played a seminal role in the preparation of the Statute of the

International Criminal Court. The International Criminal Tribunal for

the Former Yugoslavia has remarked that ‘the Draft Code is an authorita-

tive international instrument which, depending upon the specific ques-

tion at issue, may (i) constitute evidence of customary law, or (ii) shed

light on customary rules which are of uncertain content or are in the

process of formation, or, at the very least, (iii) be indicative of the legal

views of eminently qualified publicists representing the major legal

systems of the world’.35

The ad hoc tribunals

While the draft statute of an international criminal court was being con-

sidered in the International Law Commission, events compelled the crea-

tion of a court on an ad hoc basis in order to address the atrocities being

committed in the former Yugoslavia. In late 1992, as war raged in Bosnia, a

Commission of Experts established by the Security Council identified a

range of war crimes and crimes against humanity that had been commit-

ted and that were continuing. It urged the establishment of an interna-

tional criminal tribunal, an idea that had originally been recommended by

Lord Owen and Cyrus Vance. The proposal was endorsed by the General

33 James Crawford, ‘The ILC’s Draft Statute for an International Criminal Tribunal’, (1994) 88American Journal of International Law 140; James Crawford, ‘The ILC Adopts a Statute for anInternational Criminal Court’, (1995) 89 American Journal of International Law 404. For theInternational Law Commission’s discussion of the history of the draft statute, see ‘Report ofthe International Law Commission on the Work of its Forty-Sixth Session, 2 May–22 July1994’, UN Doc. A/49/10, chapter II, paras 23–41.

34 Timothy L. H. McCormack and G. J. Simpson, ‘The International Law Commission’s DraftCode of Crimes Against the Peace and Security of Mankind: An Appraisal of the SubstantiveProvisions’, (1994) 5Criminal Law Forum 1; John Allain and John R.W. D. Jones, ‘A Patchworkof Norms: A Commentary on the 1996 Draft Code of Crimes Against the Peace and Security ofMankind’, (1997) 8 European Journal of International Law 100.

35 Prosecutor v. Furundzija (Case No. IT-95-17/1-T), Judgment, 10 December 1998, para. 227.

Assembly in a December 1992 resolution. The rapporteurs appointed

under the Moscow Human Dimension Mechanism of the Conference on

Security and Co-operation in Europe, Hans Correll, Gro Hillestad Thune

and Helmut Türk, took the initiative to prepare a draft statute. Several

governments also submitted draft proposals or otherwise commented

upon the creation of a tribunal.36

On 22 February 1993, the Security Council decided upon the establish-

ment of a tribunal mandated to prosecute ‘persons responsible for serious

violations of international humanitarian law committed in the territory of

the former Yugoslavia since 1991’.37 The draft proposed by the Secretary-

General was adopted without modification by the Security Council in its

Resolution 827 of 8 May 1993. According to the Secretary-General’s

report, the tribunal was to apply rules of international humanitarian law

that are ‘beyond any doubt part of the customary law’.38 The Statute

clearly borrowed from the work then underway within the International

Law Commission on the statute and the code of crimes, in effect combin-

ing the two into an instrument that both defined the crimes and estab-

lished the procedure before the court. The Tribunal’s territorial

jurisdiction was confined to the territory of the former Yugoslavia.

Temporally, it was entitled to prosecute offences beginning in 1991,

leaving its end-point to be established by the Security Council.

In November 1994, acting on a request from Rwanda, the Security

Council voted to create a second ad hoc tribunal, charged with the prose-

cution of genocide and other serious violations of international humani-

tarian law committed in Rwanda and in neighbouring countries during

the year 1994.39 Its Statute closely resembles that of the International

Criminal Tribunal for the Former Yugoslavia, although the war crimes

provisions reflect the fact that the Rwandan genocide took place within

the context of a purely internal armed conflict. The resolution creating the

Tribunal expressed the Council’s ‘grave concern at the reports indicating

that genocide and other systematic, widespread and flagrant violations of

international humanitarian law have been committed in Rwanda’, and

referred to the reports of the Special Rapporteur for Rwanda of the United

36 For the documentary history of the Yugoslav Tribunal, see Virginia Morris and Michael P.Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia: ADocumentary History and Analysis, New York: Transnational Publishers, 1995

37 SC Res. 808 (1993).38 ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808(1993)’, UN Doc. S/25704. 39 SC Res. 955 (1994).

Nations Commission on Human Rights, as well as the preliminary report

of the Commission of Experts, which the Council had established earlier

in the year.

The Yugoslav and Rwanda tribunals are in effect joined at the hip,

sharing not only virtually identical statutes but also some of their institu-

tions. The Prosecutor is the same for both tribunals, as is the Appeals

Chamber. The consequence, at least in theory, is economy of scale as well

as uniformity of both prosecutorial policy and appellate jurisprudence.

The first major judgment by the Appeals Chamber of the Yugoslav

Tribunal, the Tadic jurisdictional decision of 2 October 1995, clarified

important legal issues relating to the creation of the body.40 It also pointed

the Tribunal towards an innovative and progressive view of war crimes

law, going well beyond the Nuremberg precedents by declaring that crimes

against humanity could be committed in peacetime, and by establishing

the criminal nature of war crimes during internal armed conflicts.

Subsequent rulings of the ad hoc tribunals on a variety of matters fed

the debates on the creation of an international criminal court. The find-

ings in Tadicwith respect to the scope of war crimes were essentially incor-

porated into the Statute of the International Criminal Court. Other

judgments, such as a controversial holding that excluded recourse to a

defence of duress,41 prompted the drafters of the Rome Statute to enact a

provision ensuring precisely the opposite.42 The issue of ‘national security’

information, ignored by the International Law Commission, was thrust to

the forefront of the debates after the Tribunal ordered Croatia to produce

government documents,43 and resulted in one of the lengthiest and most

enigmatic provisions in the final Statute.44 But the Tribunals did more

than simply set legal precedent to guide the drafters. They also provided a

reassuring model of what an international criminal court might look like.

This was particularly important in debates concerning the role of the

Prosecutor. The integrity, neutrality and good judgment of Richard

40 Prosecutor v. Tadic (Case No. IT-94-1-AR72), Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction, 2 October 1995, (1997) 105 ILR 453, (1997) 35 ILM 32.

41 Prosecutor v. Erdemovic (Case No. IT-96-22-A), Sentencing Appeal, 7 October 1997, (1998) 111ILR 298.

42 Rome Statute of the International Criminal Court, UNDoc. A/CONF.183/9 (hereinafter RomeStatute), Art. 31(1)(d).

43 Prosecutor v. Blaskic (Case No. IT-95-14-AR108bis), Objection to the Issue of Subpoenae DucesTecum, 29 October1997, (1998) 110 ILR 677. 44 Rome Statute, Art. 72.

Goldstone and his successor, Louise Arbour, answered those who warned

of the dangers of a reckless and irresponsible ‘Dr Strangelove prosecutor’.

Drafting of the ICC Statute

In 1994, the United Nations General Assembly decided to pursue work

towards the establishment of an international criminal court, taking the

International Law Commission’s draft statute as a basis.45 It convened an

AdHoc Committee, whichmet twice in 1995.46 Debates within the AdHoc

Committee revealed rather profound differences among States about the

complexion of the future court, and some delegations continued to

contest the overall feasibility of the project, although their voices became

more and more subdued as the negotiations pursued. The International

Law Commission draft envisaged a court with ‘primacy’, much like the ad

hoc tribunals that had been set up by the Security Council for the former

Yugoslavia and Rwanda. If the court’s prosecutor chose to proceed with a

case, domestic courts could not pre-empt this by offering to do the job

themselves. In meetings of the Ad Hoc Committee, a new concept reared

its head, that of ‘complementarity’, by which the court could only exercise

jurisdiction if domestic courts were unwilling or unable to prosecute.

Another departure of the Ad Hoc Committee from the International Law

Commission draft was its insistence that the crimes within the court’s

jurisdiction be defined in some detail and not simply enumerated. The

International LawCommission had contented itself with listing the crimes

subject to the court’s jurisdiction – war crimes, aggression, crimes against

humanity and genocide – presumably because the draft code of crimes, on

which it was also working, would provide the more comprehensive defini-

tional aspects. Beginning with the Ad Hoc Committee, the nearly fifty-

year-old distinction between the ‘statute’ and the ‘code’ disappeared.

Henceforth, the statute would include detailed definitions of crimes as

well as elaborate provisions dealing with general principles of law and

45 All of the basic documents of the drafting history of the Statute, including the draft statute pre-pared by the International Law Commission, have been reproduced in M. Cherif Bassiouni,ed., The Statute of the International Criminal Court: A Documentary History, Ardsley, NY:Transnational Publishers, 1998.

46 Generally, on the drafting of the Statute, see M. Cherif Bassiouni, ‘Negotiating the Treaty ofRome on the Establishment of an International Criminal Court’, (1999) 32 CornellInternational Law Journal 443.

other substantivematters. The AdHoc Committee concluded that the new

court was to conform to principles and rules that would ensure the highest

standards of justice, and that these should be incorporated in the statute

itself rather than being left to the uncertainty of judicial discretion.47

It had been hoped that the Ad Hoc Committee’s work would set the

stage for a diplomatic conference where the statute could be adopted. But

it became evident that this was premature. At its 1995 session, the General

Assembly decided to convene a ‘Preparatory Committee’, inviting partici-

pation by Member States, non-governmental organizations and interna-

tional organizations of various sorts. The ‘PrepCom’, as it became known,

held two three-week sessions in 1996, presenting the General Assembly

with a voluminous report comprising a hefty list of proposed amend-

ments to the International Law Commission draft.48 It met again in 1997,

this time holding three sessions. These were punctuated by informal inter-

sessional meetings, of which the most important was surely that held

in Zutphen, in the Netherlands, in January 1998. The ‘Zutphen draft’ con-

solidated the various proposals into a more or less coherent text.49

The ‘Zutphen draft’ was reworked somewhat at the final session of the

Preparatory Committee, and then submitted for consideration by the

Diplomatic Conference.50 Few provisions of the original International

Law Commission proposal had survived intact. Most of the Articles in the

final draft were accompanied with an assortment of options and alterna-

tives, surrounded by square brackets to indicate a lack of consensus, fore-

boding difficult negotiations at the Diplomatic Conference.51 Some

important issues such as ‘complementarity’ – recognition that cases would

only be admissible before the new court when national justice systems

were unwilling or unable to try them – were largely resolved during the

47 ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’,UN Doc. A/50/22. See Roy Lee, ‘The Rome Conference and Its Contributions to InternationalLaw’, in Roy Lee, ed., The International Criminal Court, The Making of the Rome Statute, Issues,Negotiations, Results, The Hague: Kluwer Law International, 1999, pp. 1–39, at p. 7; TuilomaNeroni Slade and Roger S. Clark, ‘Preamble and Final Clauses’, in Lee, ibid., pp. 421–50, at pp.436–7.

48 ‘Report of the Preparatory Committee on the Establishment of an International CriminalCourt’, UN Doc. A/51/22.

49 ‘Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, TheNetherlands’, UN Doc. A/AC.249/1998/L.13.

50 ‘Report of the Preparatory Committee on the Establishment of an International CriminalCourt, Addendum’, UN Doc. A/CONF.183/2/Add.1.

51 See M. Cherif Bassiouni, ‘Observations Concerning the 1997–98 Preparatory Committee’sWork’, (1997) 25Denver Journal of International Law and Policy 397.

PrepCom process. The challenge to the negotiators at the Diplomatic

Conference was to ensure that these issues were not reopened. Other

matters, such as the issue of capital punishment, had been studiously

avoided during the sessions of the PrepCom, and were to emerge suddenly

as impasses in the final negotiations.

Pursuant to General Assembly resolutions adopted in 1996 and 1997,

the Diplomatic Conference of Plenipotentiaries on the Establishment of

an International Criminal Court convened on 15 June 1998 in Rome, at

the headquarters of the Food and Agriculture Organization. More than

160 States sent delegates to the Conference, in addition to a range of inter-

national organizations and literally hundreds of non-governmental

organizations. The enthusiasm was quite astonishing, with essentially all

of the delegations expressing their support for the concept. Driving the

dynamism of the Conference were two new constituencies: a geographi-

cally heterogeneous caucus of States known as the ‘like minded’; and a

well-organized coalition of non-governmental organizations.52 The ‘like

minded’; initially chaired by Canada, had been active since the early stages

of the Preparatory Commission, gradually consolidating its positions

while at the same time expanding its membership. By the time the Rome

Conference began, the ‘like minded caucus’ included more than sixty of

the 160 participating States.53 The like-minded were committed to a

handful of key propositions that were substantially at odds with the prem-

ises of the 1994 International Law Commission draft and, by and large, in

conflict with the conception of the court held by the permanent members

of the Security Council. The principles of the like-minded were: an inher-

ent jurisdiction of the Court over the ‘core crimes’ of genocide, crimes

against humanity and war crimes (and, perhaps, aggression); elimination

of a Security Council veto on prosecutions; an independent prosecutor

52 On the phenomenal and unprecedented contribution of non-governmental organizations, seeWilliam R. Pace and Mark Thieroff, ‘Participation of Non-Governmental Organizations’, inLee, The International Criminal Court, pp. 391–8; William Bourdon, ‘Rôle de la société civile etdes ONG’, in La Cour pénale internationale, Paris: La Documentation française, 1999, pp.89–96.

53 Andorra, Argentina, Australia, Austria, Belgium, Brunei, Benin, Bosnia-Herzegovina,Bulgaria, Burkina Faso, Burundi, Canada, Chile, Congo (Brazzaville), Costa Rica, Croatia,Czech Republic, Denmark, Egypt, Estonia, Finland, Gabon, Georgia, Germany, Ghana,Greece, Hungary, Ireland, Italy, Jordan, Latvia, Lesotho, Liechtenstein, Lithuania,Luxembourg, Malawi, Malta, Namibia, the Netherlands, New Zealand, Norway, thePhilippines, Poland, Portugal, Republic of Korea, Romania, Samoa, Senegal, Sierra Leone,Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Swaziland, Sweden,Switzerland, Trinidad and Tobago, United Kingdom, Venezuela and Zambia.

with the power to initiate proceedings proprio motu; and the prohibition

of reservations to the statute. While operating relatively informally, the

like-minded quickly dominated the structure of the Conference. Key func-

tions, including the chairs of most of the working groups, as well as mem-

bership in the Bureau, which was the executive body that directed the

day-to-day affairs of the Conference, were taken up by its members.

Canada relinquished the chair of the like-minded when the legal advisor

to its foreign ministry, Philippe Kirsch, was elected president of the

Conference’s Committee of the Whole.

But there were other caucuses and groupings at work, many of them

reflections of existing formations within other international bodies, like

the United Nations. The caucus of the Non-Aligned Movement (NAM)

was particularly active in its insistence that the crime of aggression be

included within the subject matter jurisdiction of the Court. A relatively

new force, the Southern African Development Community (SADC),

under the dynamic influence of post-apartheid South Africa, took impor-

tant positions on human rights, providing a valuable counter-weight to

the Europeans in this field. The caucus of the Arab and Islamic States were

active in a number of areas, including a call for prohibition of nuclear

weapons, and support for inclusion of the death penalty within the

statute. The beauty of the like-minded caucus, indeed the key to its great

success, was its ability to cut across the traditional regionalist lines.

Following the election of the Labour Government in the United Kingdom,

the like-minded caucus even managed to recruit a permanent member of

the Security Council to its ranks.

The Rome Conference began with a few days of formal speeches from

political figures, United Nations officials and personalities from the

growing ranks of those actually involved in international criminal prose-

cution, including the presidents of the two ad hoc tribunals and their

Prosecutor.54 Then the Conference divided into a series of working groups

with responsibility for matters such as general principles, procedure and

penalties. Much of this involved details, unlikely to create insurmountable

difficulties to the extent that the delegates were committed to the success

54 For a detailed discussion of the proceedings at the Rome Conference, see Philippe Kirsch andJohn T. Holmes, ‘The Rome Conference on an International Criminal Court, The NegotiatingProcess’, (1999) 93 American Journal of International Law 2; Roy Lee, ‘The Rome Conferenceand Its Contributions to International Law’, in Lee, The International Criminal Court, pp.1–39, particularly pp. 21–3; and Philippe Kirsch, ‘The Development of the Rome Statute’, inLee, The International Criminal Court, pp. 451–61.

of the endeavour. But a handful of core issues – jurisdiction, the ‘trigger

mechanism’ for prosecutions, the role of the Security Council – remained

under the wing of the Bureau. These difficult questions were not publicly

debated for most of the Conference, although much negotiating took

place informally.

One by one, the provisions of the statute were adopted ‘by general

agreement’ in the working groups, that is, without a vote. The process was

tedious, in that it allowed a handful of States or even one of them to hold

up progress by refusing to join consensus. The chairs of the working

groups would patiently negotiate compromises, drawing on comments by

States who often expressed their views on a provision but then indicated

their willingness to be flexible. Within a week of the beginning of the

Conference, the working groups were forwarding progress reports to the

Committee of the Whole, indicating the provisions that had already met

with agreement. These were subsequently examined by the Drafting

Committee, chaired by Professor M. Cherif Bassiouni, for terminological

and linguistic coherence in the various official language versions of the

statute.

But as the weeks rolled by, the key issues remained to be settled, of

which the most important were the role of the Security Council, the list of

‘core crimes’ over which the court would have inherent jurisdiction and

the scope of its jurisdiction over persons who were not nationals of States

Parties. These had not been assigned to any of the working groups, and

instead were handled personally by the chair of the Committee of the

Whole, Philippe Kirsch. With two weeks remaining, Kirsch issued a draft

that set out the options on these difficult questions. The problem, though,

was that many States belonged to the majority on one question but dis-

sented on others. Finding a common denominator, that is, a workable

statute that could reliably obtain the support of two-thirds of the delegates

in the event that the draft statute were ever to come to a vote, remained

daunting. Suspense mounted in the final week, with Kirsch promising a

final proposal that in fact he only issued on the morning of 17 July, the day

the Conference was scheduled to conclude. By then it was too late for any

changes. Like a skilled blackjack player, Kirsch had carefully counted his

cards, yet he had no guarantee that his proposal might meet unexpected

opposition and lead, inexorably, to the collapse of the negotiations.

Throughout the final day of the Conference delegates expressed their

support for the ‘package’, and resisted any attempts to alter or adjust it out

of fear that the entire compromise might unravel. The United States tried

unsuccessfully to rally opposition, convening a meeting of what it had

assessed as ‘waverers’. Indeed, hopes that the draft statute might be

adopted by consensus at the final session were dashed when the United

States exercised its right to demand that a vote be taken. The result was 120

in favour, with twenty-one abstentions and seven votes against. The vote

was not taken by roll call, and only the declarations made by States them-

selves indicate who voted for what. The United States, Israel and China

stated that they had opposed adoption of the statute.55 Among the abstain-

ers were several Arab and Islamic States, as well as a number of delegations

from the Commonwealth Caribbean.

In addition to the Statute of the International Criminal Court,56 on 17

July, 1998 the Diplomatic Conference also adopted a Final Act,57 providing

for the establishment of a Preparatory Commission. The Commission was

assigned a variety of tasks, of which the most important were the drafting

of the Rules of Procedure and Evidence,58 which provide details on a

variety of procedural and evidentiary questions, and the Elements of

Crimes,59 which elaborate upon the definitions of offences in Articles 6, 7

and 8 of the Statute. The Commissionmet the deadline of 30 June 2000 set

for it by the Final Act, for the completion of the Rules and the Elements.60

Other tasks include drafting an agreement with the United Nations on the

relationship between the two organizations, and preparation of a host

state agreement with the Netherlands, which is to be the seat of the Court.

The Preparatory Commission is to operate until the Statute comes into

force, at which point the Assembly of States Parties will be convened. The

Assembly will elect the judges and prosecutor, and presumably endorse

the work of the Preparatory Commission.

55 Lee, The International Criminal Court, at pp. 25–6; and Giovanni Conso, ‘Looking to theFuture’, in Lee, The International Criminal Court, pp. 471–7. For the positions of the UnitedStates and China, see UN Doc. A/C.6/53/SR.9.

56 The text of the Statute adopted at the close of the Rome Conference contained a number ofminor errors, essentially of a technical nature. There have been two attempts at correction: UNDoc. C.N.577.1998.TREATIES-8 (10 November 1998) and UN Doc. C.N.604.1999.TREATIES-18 (12 July 1999). 57 UN Doc. A/CONF.183/10.

58 Provided for in Art. 51 of the Rome Statute.59 Provided for in Art. 9 of the Rome Statute.60 ‘Report of the Preparatory Commission for the International Criminal Court, Addendum,Finalized Draft Text of the Elements of Crimes’, UN Doc. PCNICC/2000/INF/3/Add.2;‘Report of the Preparatory Commission for the International Criminal Court, Addendum,Finalized Draft Text of the Rules of Procedure and Evidence’, UN Doc.PCNICC/2000/INF/3/Add.3.

The Statute requires sixty ratifications before it can enter into force.

States are also invited to sign the Statute, which is a preliminary step indi-

cating their intention to ratify. They were given until the end of 2000 to do

so, and some 139, including the United States, Israel and several Arab and

Islamic States, availed themselves of the opportunity to do so. Delays

between signature and ratification are to be expected, because most States

must undertake significant legislative changes in order to comply with the

obligations imposed by the Statute, and it is normal that they will want to

resolve these issues before formal ratification. Specifically, they must

provide for cooperation with the Court in terms of investigation, arrest

and transfer of suspects. Many States now prohibit the extradition of their

own nationals, a situation incompatible with the requirements of the

Statute. In addition, because the Statute is predicated on ‘complementar-

ity’, by which States themselves are presumed to be responsible for prose-

cuting suspects found on their own territory, many must also bring their

substantive criminal law into line, enacting the offences of genocide,

crimes against humanity and war crimes as defined in the Statute and

ensuring that their courts can exercise universal jurisdiction over these

crimes.61

The influence of the Rome Statute will extend deep into domestic crim-

inal law, enriching the jurisprudence of national courts and challenging

prosecutors and judges to greater zeal in the repression of serious viola-

tions of human rights. National courts have shown, in recent years, a

growing enthusiasm for the use of international lawmaterials in the appli-

cation of their own laws. The Statute itself, and eventually the case law of

the International Criminal Court, will no doubt contribute in this area.

The International Criminal Tribunal for the Former Yugoslavia, in

Prosecutor v. Furundzija, described the Statute’s current legal significance

as follows:

[A]t present it is still a non-binding international treaty (it has not yet

entered into force). It was adopted by an overwhelming majority of the

States attending the Rome Diplomatic Conference and was substantially

endorsed by the General Assembly’s Sixth Committee on 26 November

61 William A. Schabas, ‘The Follow Up to Rome: Preparing for Entry into Force of theInternational Criminal Court Statute’, (1999) 20Human Rights Law Journal 157; S. Rama Rao,‘Financing of the Court, Assembly of States Parties and the Preparatory Commission’, in Lee,The International Criminal Court, pp. 399–420, at pp. 414–20; Bruce Broomhall, ‘TheInternational Criminal Court: A Checklist for National Implementation’, (1999) 13quaterNouvelles études pénales 113.

1998. In many areas the Statute may be regarded as indicative of the legal

views, i.e. opinio juris of a great number of States. Notwithstanding article

10 of the Statute, the purpose of which is to ensure that existing or develop-

ing law is not ‘limited’ or ‘prejudiced’ by the Statute’s provisions, resort may

be had com grano salis to these provisions to help elucidate customary inter-

national law. Depending on the matter at issue, the Rome Statute may be

taken to restate, reflect or clarify customary rules or crystallise them,

whereas in some areas it creates new law or modifies existing law. At any

event, the Rome Statute by and largemay be taken as constituting an author-

itative expression of the legal views of a great number of States.62

The International Criminal Court is perhaps the most innovative and

exciting development in international law since the creation of the United

Nations. The Statute is one of themost complex international instruments

ever negotiated, a sophisticated web of highly technical provisions drawn

from comparative criminal law combined with a series of more political

propositions that touch the very heart of State concerns with their own

sovereignty. Without any doubt its creation is the result of the human

rights agenda that has steadily taken centre stage within the United

Nations since Article 1 of its Charter proclaimed the promotion of human

rights to be one of its purposes. From a hesitant commitment in 1945, to

an ambitious Universal Declaration of Human Rights in 1948, we have

now reached a point where individual criminal liability is established for

those responsible for serious violations of human rights, and where an

institution is created to see that this is more than just some pious wish.

62 Prosecutor v. Furundzija, supra note 35, para. 227. For an example of the draft statute of thecourt being cited as a guide to evolving customary international law, see the reasons of JusticeMichel Bastarache of the Supreme Court of Canada in Pushpanathan v. Canada (Minister ofCitizenship and Immigration) [1998] 1 SCR 982, at paras 66–8.